CPS Energy sued over toxic chemical exposure and electrocution death

CPS Energy was recently sued in two separate lawsuits alleging its workers were harmed or killed on the job. Crews are seen here in storm-ravaged Refugio after Hurricane Harvey in 2017.

CPS Energy is facing a pair of lawsuits filed hours apart over deaths and injuries of employees allegedly exposed to a toxic chemical on the job and the death of a quarry plant manager allegedly electrocuted by a downed power line.

In the chemical case, 13 former CPS employees and the widows of four others allege that the utility required them to clean its machinery with trichloroethylene "day-in, day-out, for many years," a complaint says.

The "chronic exposure to TCE" resulted in the workers having "sustained profound harms and losses, including damage to the liver, kidneys ... central nervous systems, genetic damages, Parkinson's disease, cancer and death," the suit adds.

"Their employer knew or should have known that that risk was there and prevented it," said Andrew K. Smith, a Missouri lawyer representing the plaintiffs. CPS "could have either not used TCE, or they could have provided adequate protection from it, or they could have at least warned their employees."

In the other lawsuit, filed less than nine hours earlier, the family of a Lehigh Hanson assistant plant manager alleges that he came into contact "with or near" a downed power line last year at its quarry in Garden Ridge.

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Each of the suits seeks more than $1 million in damages.

Melissa Sorola, a CPS spokeswoman, said the utility hired outside counsel to defend itself against the actions and had no further comment.

TCE is a chlorinated solvent once widely used to remove grease and grime on metal. The CPS workers say the utility required them to use it to clean machinery. They also sprayed the chemical on their clothing, hands and skin.

Dates of employment and duration of TCE exposure differ for each worker, Smith said. As a whole, though, their employment spanned decades — from the 1980s until the early 2000s.

"A lot of these guys gave their entire working life to CPS, or nearly all of it," he said. "Worked there for 30 or more years."

Potential issues with TCE were known while the workers "were still in the infancy of their exposure ... and likely before any exposure," Smith said.

As for CPS, he added, "They should certainly have known that it was an unreasonably safe chemical to use in the way they made their employees use it."

Concern about the potential environmental and health effects of TCE emerged in the late 1970s, according to a 2014 book on the chemical and other chlorinated agents on the website of the National Library of Medicine, part of the National Institutes of Health. In the United States, several regulations have been passed at county, state and national levels to limit TCE emissions, the book added. In the 1980s, several European countries and the European Union passed regulations to protect workers from exposure.

The National Toxicology Program first listed it as a carcinogen in 2000 after studies in humans. Specifically, it found that the chemical caused kidney cancer. The program is administered by the National Institute of Environmental Health Sciences, also part of the NIH.

Further studies have been conducted over the years. Most recently, the Environmental Protection Agency in January found that TCE presents "an unreasonable risk of injury to health."

"EPA identified health risks, including developmental toxicity, reproductive toxicity, liver toxicity, kidney toxicity, immunotoxicity, neurotoxicity and cancer from inhalation or dermal exposures to TCE," it reported.

Proposed regulations could include "prohibitions or requirements that limit the manufacture, processing, distribution in commerce, commercial use or disposal of this chemical substance as applicable," the EPA said.

The plaintiffs are suing CPS for negligence, gross negligence and "intentional tort," meaning it knew that the alleged conduct would result in injury. They also are suing for "fraudulent concealment," alleging that CPS had a "duty to disclose this danger."

"TCE exposure results in latent sickness and disease that attack the body over time," the suit says. "This type of injury does not manifest until many years or even decades after a person is first exposed."

The plaintiffs are Antonio Cadena, Michael Capps, Librado Cavazos, Kenneth Conner, Jesse De La Vega, Guy Dever, Ronald James, Robert Knight, Ignacio Martinez, Edward Mihalski, Edward Niestroy, Juan Ramirez and Baldemar Rocha. The majority of them "have some degree of a fairly serious, permanent condition." Those conditions vary from neurological to respiratory to cancer-related illnesses and immune-related diseases.

The deceased workers whose widows are suing are Thomas Bippert, Paul Gibson, Jessie Peterson and Clarn Posey. Smith didn't immediately have the information but said at least a couple of them died from cancer.

The lawsuit was filed March 24 in state District Court in San Antonio.

Earlier that day at the same courthouse, the family of Tate Boyster filed a negligence lawsuit against CPS over his Sept. 3 electrocution death at the Servtex Quarry on FM 2252 in Garden Ridge. The quarry had been operated for decades by Lehigh Hanson, which now is known as Heidelberg Materials.

Boyster, another unidentified plant employee and their wives drove to the quarry the Saturday before Labor Day to look at a dam, the suit says. They noticed an area of charred ground where there had been a brush fire and saw a downed power line. Boyster and his wife, Kayleen Boyster, went to investigate, the suit says.

The downed power line is believed to have caused the fire, said Lara Brock, a San Antonio lawyer who represents the family. The couples went to the dam so the employee could show Boyster something, Brock said, but she didn't know what that was because she hasn't had a chance to speak to the employee.

Boyster came into contact with or near a power line and was electrocuted. Kayleen Boyster attempted to save his life, but he was later pronounced dead by emergency personnel. He was 30.

Whether Boyster, a salaried employee, was on the job at the time of his death is "going to be the fight," Brock said. His employer has denied his wife's request for worker's compensation benefits because the incident occurred on weekend, Brock said.

The suit alleges that CPS owned the the substations, breakers, transformers and various systems that monitor the power lines and other equipment.

CPS "failed to comply with various statutory regulations and obligations," including those that relate to furnishing service and facilities "that are safe," the suit says. "Its failure to do so constitutes negligence per se."

Among numerous allegations, the plaintiffs say CPS was negligent in failing to "properly inspect" and "properly maintain" power lines.

The suit was filed by Kayleen Boyster of Arizona and Tate Boyster's parents, Zane and Julie Boyster, of Nevada.

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